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Key messages for developers, investors and building owners from Dame Judith Hackitt's independent review of Building Regulations and Fire Safety

The eagerly awaited final report following the independent review of Building Regulations and Fire Safety led by Dame Judith Hackitt has now been published.

The report recommends a step-change in the regulatory framework from the current position, introducing:

A Joint Competent Authority (JCA) to oversee enforcements;

More defined requirements around ‘safety cases’ for buildings and ‘Gateway’ Points for review/ approvals of those safety cases by the JCA.

Clear roles of responsibility and accountability for duty holders, taking inspiration from the structure of the Construction (Design and Management) Regulations 2015 (CDM).

Teeth for regulators, through greater enforcement options and penalties for breaches of fire safety and mandatory self-reporting requirements for breaches by organisations.

These proposed changes will be significant for many businesses and will be especially relevant to developers, investors and other building owners/ landlords.

A new regulatory framework

The key message of the report is that the current system is broken and not fit for purpose. A move towards a simpler, outcomes-based regulatory framework is recommended.

This will be overseen by a newly-created JCA which will be made up of the Health and Safety Executive (“HSE”), the fire and rescue authorities and Local Authority Building Standards. This underpins the entire system recommended in the report and it is “intended to provide a framework for those bodies to work together to more rigorously assess building safety”.

What building types does the report deal with?

The report focusses attention initially on High Rise Residential Buildings (HRRBs), which are defined as residential buildings of 10 storeys or more. This will include mixed-use buildings of that height if part of the building is residential.

However, the government will be asked to consider applying the current recommendations to other multi-occupancy residential and institutional buildings in the future.

What stages of the building life-cycle will be caught under the new framework?

The report recommends taking an entire life-cycle approach, with the building itself being looked at holistically to avoid gaps. During the planning, construction and design phase, it is recommended that the duty holder(s) should be required to consult with the JCA, at three separate ‘Gateway Points’:

Planning Permission;

Full Plans Approval, and

Completion stage.

It is recommended that consultations at these Gateway Points must satisfy robust criteria before the development can move onto the next phase.

There will be continuing duties extending right through the occupation phase, requiring the duty holder to submit a safety-case file to the JCA every 5 years and a fire risk assessment review at a frequency to be agreed with the JCA based on risk.

Who is accountable?

Planning, Design and Construction phase: The duty holder framework is proposed to mirror that set out in CDM.

Occupation phase: The ultimate accountability will likely fall to building owner or superior landlord.

A new role of ‘building safety manager’ will be created and it will be for the duty holder to make that appointment. This is likely to fall to the property management company. However, it will be necessary to ensure that the person fulfilling this role has the relevant skills, knowledge and expertise to assist in discharging the duty holder’s duties and that person is required to be available to residents concerned about safety in the building.

Accountability will remain with the duty holder, who cannot delegate this to the building safety manager.

The report also proposes rights for residents, which place further obligations on the duty holder, for example, to proactively provide residents with information to help them understand the protection in place to keep the building safe. Residents will also have a right to have access to the fire risk assessments, safety case documentation and other information. It will also be mandatory for duty holders to provide UK-based contact information to both the residents and the JCA.

What enforcement action is envisaged and what are the proposed penalties?

The report is clear that penalties need to be an effective deterrent against non-compliance. Specifically it discusses:

Additional powers for the JCA to issue formal improvement and prohibition notices on duty holders at any part of the lifecycle; and

Time limits for taking enforcement action against a duty holder to increase from 2 years from commission of the offence to 5-6 years for major deficiencies identified at a later date (i.e. a developer could seek enforcement post completion).

Currently, prosecutions for fire safety breaches are not included in the Definitive Guidelines for Health and Safety Offences, Food Safety and Hygiene and Corporate Manslaughter Offences. We expect that to change in light of the Grenfell tragedy and the inquiries. Fines for other health and safety offences imposed in the criminal courts are linked to the organisation’s turnover and fines in the 7 figures for household names/ large businesses are now commonplace. We anticipate this will extend to fire safety breaches in the future.

Additionally, the proposal for a ‘self report’ scheme for breaches of non-compliance (which we assume would be backed with an offence for failing to report), may lead to increased enforcement action.

Cost Recovery Scheme

Dame Hackitt has recommended that the JCA is given more ‘teeth’. Part of this is through a cost recovery scheme. In our view, a fee could be payable at each ‘gateway’ stage. There is specific reference to the JCA having the ability to recover their costs for inspect and intervention, similar to the HSE’s Fees for Intervention scheme.

What action should businesses take?

The report makes it clear – duty holders should not wait for the government to legislate on this. The report stresses that there is “no reason to wait to start the process of behaviour change once it is clear what is coming and what is expected”.

We expect that the report will lead to several consultations, some of which are currently underway following the recommendations already made in the interim review.

For now, we recommend that businesses:

Consider whether adequate consultation/ consideration is being taken at the early design/ pre-planning stage and involve fire experts/ the fire service in discussions;

Think about whether the ‘safety case’ concept could be put in place on projects now, bringing together relevant documentation in a digital format;

Examine current arrangements for resident engagement and consider putting together a ‘resident engagement strategy’ as envisaged in the report;

Take the opportunity in contractual documentation and leases to focus on roles and responsibilities.